Deepa vs Balaji on 13 April, 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13-04-2017

CORAM:

THE HONOURABLE DR. JUSTICE P.DEVADASS

C.R.P.(PD) No.1366 of 2017

Deepa .. Petitioner/Petitioner/Respondent

Vs.

Balaji ..
Respondent/Respondent/Petitioner

Civil Revision Petition filed under Article 227 of the Constitution of

India to set aside the fair and decretal order passed by the learned Sub-Judge,
Gudiyatham on 21.9.2016 in I.A.No.20 of 2014 in HMOP No.76 of 2013.

For Petitioner : Mr.D.Rajagopal

ORDER

Since only a narrow legal point is involved, we shall dispose of this revision today at the
admission stage itself.

2. The revision petitioner is the wife of the respondent. They have married on 3.9.1998
according to Hindu rites and customs in Gudiyatham, Vellore District. They were
blessed with three children. They are Vignesh, Dharshini and Harini. They were born on
6.2.2004, on 19.11.2006 and on 11.1.2009 respectively.

3. Marital discordance arose between the spouses. Consequently, they started living
separately. The children are stated to be with their mother. In the circumstances, the
husband filed HMOP No.76 of 2013 in the Sub-Court, Gudiyatham, seeking dissolution
of his marriage with her on the ground of willful desertion and cruelty. She filed counter
refuting his allegations. She also alleged that he ill-treated her with cruelty and also
forced her to consent for his second marriage with another woman.

4. She is a homemaker. She has no independent income of her own. She has no
financial sources for the survival of herself and her children. In the circumstances, in the
HMOP, she filed I.A.No.20 of 2014 under Sections 24 and 26 of the Hindu Marriage Act,
1955 seeking maintenance for herself and also for her children.

5. This was opposed to tooth and nail by her husband also on the ground that she is
already in receipt of Rs.1,500/- p.m. and Rs.1,000/- p.m. by each child in MC No.9 of
2014 on the file of the learned Judicial Magistrate, Gudiyatham.

6. After hearing both sides, ultimately, the learned Subordinate Judge dismissed their
maintenance petition on the ground that as already they are in receipt of maintenance
under an order passed by the learned Judicial Magistrate, Gudiyatham under Section
125 Cr.P.C and if they want more they should have filed a petition for enhancement of
maintenance before the learned Magistrate.

7. Aggrieved, this revision has been filed by the wife.

8. An husband's obligation to maintain his wife arises on marriage. Such obligation

towards his children arises on their birth. These obligations are imposed on him by
operation of law. It is also a moral obligation imposed upon him. It is 'immoral' and
'illegal' to deny them maintenance. In my view, it is a sacred duty of an husband or
father, as the case may be, towards his wife and children. This is the least the father of
a girl expects from his son-in-law. Otherwise why should he marry a woman and leave
her and her children in lurch in the street.

9. Besides the love and affection of their father, the children can also seek financial
support from their putative father for their genuine and reasonable needs. It is too cruel
on his part to deny them maintenance. There may be many disputes or differences
between their parents but that cannot be a reason to refuse them maintenance and
make them to suffer. In matrimonial disputes the innocent children are the worst
sufferers.

10. In the Old Code of Criminal Procedure, 1898, in Section 488, a provision for
maintenance had been made for the wives, children, ageold parents to prevent
vagrancy among them. When an husband, who had sufficient means/financial capacity
had failed and neglected to maintain his wife and children, who are unable to maintain
themselves, the said Section 488 can be invoked. The maintenance petition has to be
disposed of in a summary manner by the learned Magistrates.

11. In the New Code of Criminal Procedure, 1973, in Chapter IX, Sections
125 to 128 deals with providing of maintenance to wives, children and parents. The
object of inserting such a provision in a Criminal statute is to give them immediate relief.
And the Magistrates are expected to enquire and dispose of these petitions in a
summary manner at the quickest possible time.

12. As per clause (b) of Explanation to Section 125(1), Cr.P.C., even a 'divorced
woman', whether she has been divorced or has obtained divorce can also seek
maintenance. Through an amendment made in 2001 provision has been made to
provide them interim maintenance and also for litigation expenses.

13. In Metropolitan Cities and in Major Towns Family Courts have been constituted
under the Family Courts Act, 1984. Still there is no change in the substantive personal
law of the spouses and the children. As per Sections 7, 10 of the said Act, the Family
Courts can deal with the maintenance petitions under Section 125 Cr.P.C., also. And
such maintenance orders could be enforced in the same manner the maintenance
orders are being enforced in the Magistrates Court under Section 128 Cr.P.C.

14. Persons professing different religions are governed under the personal law
applicable to them. Marital discordance and matters connected thereto are dealt with
under these personal laws. When matrimonial strife arises, the spouses approaches
Matrimonial Courts, seek matrimonial reliefs such as 'restitution of conjugal rights',
'judicial separation', 'dissolution of marriage/divorce', 'declaration of nullity of the
marriage' or even 'a suit to declare the legal status or marital status of a man, woman, a
child'. These matrimonial proceedings may be at the instance of either spouse.

15. The said proceedings are governed under the personal laws to which the parties are
subjected to, such as Hindu Marriage Act, 1955, Indian Divorce Act, 1869, Parsi
Marriage and Divorce Act, 1936, Dissolution of Muslim Marriages Act, 1939, in view
of Muslim Personal Law (Shariat) Application Act, 1937 'Sharia' of Islamic law, Foreign
Marriage Act, 1969 and for those who have no faith in any religion or rationalists
the Special Marriages Act, 1954.

16. In the matrimonial proceedings instituted under the said personal laws, the wife and
children can seek maintenance against the husband/father, as the case may be. It is to
provide them financial support. It is for their survival, as long as the matrimonial
proceedings are pending. Thus, they came to be called 'pendent lite maintenance'. It is
also a 'temporary alimony' to the wife. They are in the nature of granting 'interim relief,
'interim measure', 'interim protection'.

17. The component of such maintenance includes a 'reasonable and a fair' amount for
the woman to maintain herself 'according to the mode of life to which she is accustomed
to', 'according to the status to which she is entitled to', 'according to the mode or life
style to which her husband is accustomed to'. But, in any case, it cannot be for a
luxurious mode of living or for 'extravagansa' and not beyond the means of the
husband. In case of children, this component also includes their educational expenses.
They can be granted litigation expenses and monetary relief to cover their to and fro
expenses to attend the Court and return their homes.

18. Hindu wives can seek such pendent lite maintenance in a pending matrimonial
proceedings under Section 24 of the Hindu Marriages Act. The children can seek such
maintenance from their father under Section 26 of the Act. Section 37 of the Indian
Divorce Act, 1869, Section 39 of the Parsi Marriage and Divorce Act, 1936, Sections
36 and 38 of the Special Marriage Act, 1954 also deals with grant of pendent lite
maintenance. Though the position in Islamic Law is different, Islamic Law do have
provision for the women and children.

19. In the Metropolitan Cities and in major Towns, the Family Courts deal with the
pendent lite maintenance petitions. In places where no Family Court is constituted, the
District Courts and the Sub Courts deal with such petitions filed under the personal laws
to which the parties belongs. They are all Civil Courts. They deal with maintenance
matters on the civil side. Apart from this, certain eligible persons can also seek
maintenance under the Hindu Adoption and Maintenance Act, 1956 from the Civil
Courts. The principles governing grant of maintenance under this Act is different from
grant of pendent lite maintenance in matrimonial cases. But contents-wise there is no
much difference.

20. The object of Section 24 of the Hindu Marriages Act in providing maintenance to a
party in matrimonial proceedings is obviously to provide financial assistance to the
spouse to maintain herself or himself during the pendency of the proceedings and also
to have sufficient funds to carry on the litigation so that the spouse does not unduly
suffer in the conduct of the case for want of funds.

21. Section 24 of the Hindu Marriage Act seeks to provide financial support, wherewithal
to the wife and Section 26 of the Act seeks to provide maintenance to the children to
withstand the financial crisis arising out of the separation and also to face the
matrimonial proceedings initiated by her husband.

22. However, that is not the object of Section 125 Cr.P.C. Section 125 Cr.P.C.
and Section 24 of the Hindu Marriage Act operates in different sphere and they are
independent of each other. (See Prem Nath Sarvan vs. Smt. Prem Lata Sarvan (AIR
1988 Del 50).

23. Under Section 125 Cr.P.C., even a divorcee can claim maintenance from her ex-
husband. But, under Section 24 of the Act, a divorcee cannot claim maintenance.
However, after divorce, she can claim 'permanent alimony' from her former husband.

24. An order passed under Section 125 Cr.P.C. will not take away the jurisdiction of the
Matrimonial Courts/Civil Courts to grant pendent lite maintenance to the wife and
children under Sections 24, 26 of the Hindu Marriage Act. An order of maintenance
passed under Section 125 Cr.P.C shall not bar the wife and the children to recourse
to Sections 24, 26 of the said Act and seek maintenance in a pending matrimonial
proceedings. They can seek such a relief in a matrimonial proceedings initiated either
by the husband or by the wife herself.

25. The object behind Sections 24, 26 of the Hindu Marriage Act is survival of the wife
and children as long as the matrimonial proceedings are pending. It also enures to the
appeals, revisions and connected proceedings arising out of the matrimonial
proceedings, either from the pendente lite maintenance proceedings or from the main
matrimonial proceedings.

26. No law of limitation applies to these maintenance matters. A wife, who was
financially sound, at the start of the matrimonial proceedings nor disliked to get any
financial support from her husband, by quirk of events, subsequently may suffer
financial crisis, may need financial support and in such an event, subsequently also she
can seek pendente lite maintenance in the pending matrimonial proceedings from her
husband.

27. The maintenance orders passed under Section 125 Cr.P.C. are enforced
under Section 128 Cr.P.C. However, the maintenance orders passed by the Matrimonial
Courts/Civil Courts under Sections 24, 26of the Hindu Marriage Act are
enforced/executed as Civil Court decrees under Section 51 and Order XXI of the Civil
procedure Code, 1908.

28. As per Section 127 Cr.P.C., enhancement of maintenance already granted by the
Magistrate can be sought for before the Magistrate or before the Family Court, when the
order has been passed by the Family Court. However, notwithstanding such a
maintenance order passed under Section 125 Cr.P.C, a wife under Section 24 of the
Hindu Marriage Act and her children under Section 26 of the Act can seek pendent lite
maintenance in a pending matrimonial proceedings from the husband and the father, as
the case may be.

29. But the said maintenance order passed under Sections 24, 26 of the said Act, will
come to an end when the matrimonial proceedings comes to an end. However, it will not
be so if the maintenance order were been passed under Section 125 Cr.P.C. It will long
last as long as the persons for whom the maintenance order has been passed is alive or
until it is cancelled under Section 127 Cr.P.C or in a manner known to law. Law of
limitation does not apply to these maintenance matters. Because it gives a 'continuous
cause of action'. Non maintaining of his wife and children by an husband is a
'continuous wrong'.

30. However, while fixing the quantum of maintenance under Sections 24, 26 of the
Hindu Marriage Act, the Civil Court can take into account the amount being paid to them
in pursuance of an order passed under Section 125 Cr.P.C. In case, the woman is
granted 'permanent alimony' it will have its repercussion in the maintenance order
already passed under Section 125 Cr.P.C (See Section 127(2) Cr.P.C.).

31. But because of the existence of a maintenance order passed by the learned Judicial
Magistrate, Gudiyatham under Section 125 Cr.P.C., the Matrimonial Court/Sub Court,
Gudiyatham cannot refuse to entertain the maintenance petition under Sections
24, 26 of the Hindu Marriage Act filed by the revision petitioner for pendente lite
maintenance. The learned Sub-Judge also cannot compel the woman and children to
go to the said Magistrate and seek enhancement of their maintenance under Section
127 Cr.P.C.

32. Thus, instead of performing his obligation under Hindu Marriage Act, the learned
Sub-Judge, Gudiyatham taken into account an irrelevant aspect and dismissed the
maintenance petition. Such a dismissal is unsustainable in law.

33. One disturbing feature which requires our attention is delay in the disposal of the
maintenance petitions under Sections 24 and 26 of the Hindu Marriage Act.

34. In this case, the wife and children of the respondent have filed this maintenance
petition in I.A.No.20 of 2014 under Sections 24, 26 of the Hindu Marriage Act as early
as on 19.3.2014. The husband filed his counter only on 19.8.2015. The learned
Subordinate Judge, Gudiyatham disposed of the I.A.No.20 of 2014 only on 21.9.2016.
Thus, it took more than 2-= years/30 months for the learned Sub-Judge to dispose of
this simple maintenance petition. Of course, the learned Sub-Judge dismissed the
petition on a misunderstanding of the law.

35. This is a classic example of 'Law's delay', 'Court's delay', 'Judge's delay', 'System
law', 'System failure'. All the stakeholders in the administration of gender justice shall
owe responsibility for this sorry state of affair.

36. In a matrimonial proceedings, the women and children are fighting the husband,
father, as the case may be not on equal footing. Some gets financial support from their
parents, brothers and sisters and also some work and earn. These are all exceptional
cases. Many women and children are unable to face the onslaught of matrimonial
proceedings because of their financial crisis. The husbands exploit their this pitiable
plight. This is an area where 'women empowerment' is completely lacking.

37. In view of the mad rush in matrimonial Courts, it is very easy to go into these Courts,
but very difficult to come out of these Courts within a short span of time. It is time
consuming. The women and children financially suffer very much. During the pendency
of the matrimonial proceedings without proper financial support their survival becomes
very difficult. They also suffer mental agony, undergoes mental trauma. They suffer
mentally, physically and also fiscally (financially).

38. The women and children are in a disadvantageous position, whereas it is not so in
the case of husbands. Capitalising their this financial constraints, the husbands torture
them by dragging on even these simple maintenance petitions for years together.
Adding fuel to their worries, the Courts also contribute their part by their long delay in
disposing of these simple maintenance petitions. Actually by their inaction the Courts
abets the perpetration of matrimonial violence and exploitation of women and children
by the husbands. The present case before us itself is a classic example for this
allegation.

39. Presently this woeful situation prevails in almost all the Family Courts and in other
Courts dealing with matrimonial proceedings. The situation is not far better in the
Magistrate's Courts dealing with maintenance petitions under Section 125 Cr.P.C. If
statistics of the pendency of these maintenance petitions are called for from these
Courts and studied, we have to hung our heads, we will be ashamed to see the face of
the affected women and children.

40. The women and children are standing in queues in these Courts to get relief even in
these simple maintenance petitions for years together. It is quite a sickening sight. They
did not get their due share of justice in the administration of gender justice by these
Courts. Practically, the women and children are neglected by these Courts. Only lip
service is being rendered to them.

41. Actually, these pendent lite maintenance petitions have to be disposed of in a

summary manner. In these petitions, the work involved is very very minimal. In these
petitions, a prima facie view as to the existence of relationship between the parties,
financial capacity of the husband and the financial need of the wife and the children are
required to be considered. Mostly income documents will be referred to. This can be
done by reading the affidavits of the spouses.

42. On the first hearing or in the next hearing or at least in the further hearing these
simple maintenance petitions can be easily disposed of, fixing a reasonable quantum of
maintenance. It is not a difficult and herculean task. The learned Judges need not write
lengthy orders running to several pages. It is just a miscellaneous and interim measure
petition. A short and swift order will do.

43. Keeping this in mind, the Law Makers have fixed a prescribed period within which
these maintenance petitions have to be disposed of (See Sections 24, 26 of Hindu
Marriage Act, 1955, Section 36 of Special Marriage Act, 1954, Section 37 of Indian
Divorce Act, 1869, Section 39 of Parsi Marriage and Divorce Act, 1936, also see 3rd
proviso to Section 125 Cr.P.C and Central Act No.50 of 2001). Generally, it is within 60
days from the date of service of notice on the wife. Subsequently, in some Statutes, this
period also has been reduced.

44. Yet, what is happening in the Family Courts, in the other matrimonial Courts and in
the Magistrate's Courts is very alarming. The learned Judges try these simple
maintenance petitions like a murder case in a Sessions Court or a most complicated
suit before a Civil Court. Consequently, this also contributes to the Law's delay.
45. After a cruelling exercise, the wife and children gets maintenance orders, generally,
a paultry sum, unrealistic and unmatching to the high inflation and spiralling prices of
even essential commodities. Sometimes, the Courts dismiss them on a
misunderstanding of law.

46. The situation is not happy in the revisions and appeals filed before the Sessions
Courts and also before this Court. The women and children will have to wait for several
years and till the maintenance order is passed they suffer in silence. This is not the aim
of law. This is not a correct justice delivery system.

47. Unlike in other litigations delay in the disposal of maintenance petitions affects the
women and children very much. It affects a cross section of the society. It is human
(woman) suffering. There are cases in which woman and children could not get financial
support to survive themselves and face the matrimonial proceedings initiated by the
husbands. Ultimately, they give up the legal battle, leave the Court with wounded
feelings. And ex parte orders are freely passed. The erring husbands happily leave the
Court. There is a victor and a vanquished. The result is failure of justice in gender
justice. These are stark realities staring at our face.

48. There is no point in crying over the spilt milk. Past is past. Let us think of the future.
Some remedial measures have to be attempted. Judges dealing with these simple
matters must realise their responsibilities and their social obligation towards these type
of litigants. They must keep in mind their pitiable plight.

49. Even in these petitions mediation, reconciliation can be attempted. Courts can effect
compromise even on the quantum of maintenance in these maintenance petitions and
pass orders accordingly [See Order 32-A, Section 89 CPC, Section 23(2) Hindu
Marriage Act, Section 9 Family Courts Act, 1984 and Afcons Infrastructure Ltd and
Another vs. Cherian Varkey Construction Co. (P) Ltd [(2010) 8 SCC 24].

50. Our aim should be to secure succor to the affected women and children quickly. In
these matters delayed justice is denial of or burial of justice. Here hurried justice is the
need of the hour. Our learned Judges are to be sensitized. They must made aware of
this darker side of gender justice. The same situation prevails in the Criminal Courts, in
the Court of Judicial Magistrates, Metropolitan Magistrates, Mahila Courts, Family
Courts, Sub-Courts and District Courts.

51. The High Court cannot be a mute, silent spectator to this stark realities in life. This
Court can give suitable guidance and instructions to the learned Magistrates
[see Section 483 Cr.P.C]. The Criminal Revisions arising from these maintenance
matters are also required to be disposed of expeditiously.

52. In these matters, the Tamil Nadu State Legal Services Authorities, District Legal
Services Authorities, Taluk Legal Services Authorities, High Court Legal Services
Committee can play a significant role.
53. In view of the foregoing deliberations and discussions, it is ordered as under:

(1) This revision succeeds;

(2) The order and decretal order passed by the learned Subordinate Judge,
Gudiyatham, Vellore District in I.A.No.20 of 2014 in H.M.O.P. No.76 of 2013 are set
aside.

(3) The said I.A. is remanded back to the said Court for fresh disposal according to law;

(4) The said I.A. shall be disposed of within 15 days from the date of receipt of a copy of
this order.

(5) On disposal of the said I.A the Trial Court shall submit its completion report to the
Registrar (Judicial) of this Court;

(6) On or before 7th of every month the Family Courts, the Chief Metropolitan
Magistrate, Judicial Magistrates, Subordinate Judges, Fast-Track Mahila Courts,
Sessions Courts, District Courts through their respective Principal District Judges, Chief
Judicial Magistrates, as the case may be, shall submit a monthly statement showing the
date of filing of the maintenance petitions filed under various enactments, under
uncodified part of Hindu law or Islamic Law under Section 125 Criminal Procedure
Code, 1973, Domestic Violence Act including the petitions filed for interim maintenance
and the stage of the petitions, the reasons for pendency to the Registrar (Judicial), High
Court.

(7) The Principal District Judges, Chief Judicial Magistrates, as the case may be, shall
review the disposal of these maintenance petitions every month and issue necessary
directions for the early disposal of all type of maintenance petitions and submit their
review report with their remarks to the Registrar (Judicial), High Court on or before 15th
of every month;

(8) The Registrar (Judicial) of this Court shall regularly monitor the progress in these
maintenance petitions and also issue appropriate instructions and directions for the
expeditious and early disposal of these maintenance matters;

(9) In their said monthly statements the said Courts shall also furnish details of stay
granted by the Sessions Court or this Court in the proceedings arising out of
maintenance matters or in any parallel or other connected proceedings;

(10) The Registrar (Judicial) will consolidate the details regularly and take appropriate
action for their early disposal by obtaining necessary orders;

(11) The Registrar (Judicial) will prepare a format containing columns for filling up the
required details in monthly statements to be submitted to this Court by the Subordinate
Courts;
(12) On entering appearance for the respondent, in Civil Miscellaneous Appeal, Civil
Revisions, Criminal Revisions arising out of the maintenance matters they shall be
referred to mediation and referring them to Lok Adalat or Mega Lok Adalat shall also be
encouraged;

(13) The Registrar (Judicial) will regularly identify the Civil Appeals, Civil Revisions,
Criminal Revisions arising out of the maintenance matters pending in this Court and
take necessary action for their early disposal by getting necessary orders;

(14) In the facts and circumstances of the case, no order as to costs.

51. Accordingly, this revision is disposed of.

13-04-2017
Speaking order/Non Speaking order
Index: Yes/No
Internet Yes/No
kua/vaan/Svn

Note:

Registry is directed to place this order, before My Lord, the Hon'ble Chief Justice, for
orders, to circulate the same to all the Courts in this State and in the Union Territory of
Pudhucherry for their guidance and for follow-up action.

To

1.The Principal District Judge, Vellore.

2.The Chief Judicial Magistrate, Vellore.

3.The Subordinate Judge, Gudiyatham.

4.The Judicial Magistrate, Gudiyatham.

Copy to

1.The Registrar-General

2.The Registrar (Judicial)

3.The Assistant Registrar (A.S.), High Court, Madras.

Dr. P.DEVADASS, J.

kua/vaan/Svn

4.The Assistant Registrar, The Mediation Centre attached to High Court, Madras.

Copy to:

1. The Member Secretary, Tamil Nadu State Legal Services Authority, High Court,
Chennai.

2. The Secretary, High Court Legal Services Committee, High Court, Chennai.

3. The Member Secretary, The Puducherry Union Legal Services Authority, Puducherry.

Copy to:

The Director, Tamilnadu State Judicial Academy, Greenways Road, R.A.Puram,

Chennai 28.

C.R.P.(PD) No.1366 of 2017 13-04-2017 http://www.judis.nic.in